AS TO THE ADMISSIBILITY OF
Application No. 19085/91
by P.K., M.K. and B.K.
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 December 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 October 1991
by P.K., M.K. and B.K. against the United Kingdom and registered on 15
November 1991 under file No. 19085/91;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 9 July
1992 and the observations in reply submitted by the applicant on
7 October 1992;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an Irish citizen born in 1955 and is
currently serving a prison sentence in Full Sutton Prison, England.
The second applicant is the mother of the first applicant. She
is 73 years old. She is an Irish citizen and resides in Belfast.
The third applicant is the sister of the first applicant. She
is an Irish citizen born in 1958 and resides in Belfast.
The applicants are represented by Mr. Peter Madden, a solicitor
practising in Belfast.
The facts as submitted by the parties may be summarised as
follows.
The first applicant was arrested in 1984 in England. He was
charged with murder, causing explosions and possession of explosives
and firearms. He was tried in England and convicted and sentenced on
6 and 7 March 1985 when he was given a sentence of life imprisonment
with a recommended minimum period of 35 years.
The first applicant has been classified as a Category A
(exceptional risk) prisoner.
The first applicant has requested that he serve his sentence of
imprisonment in a prison in Northern Ireland in order to be near to his
family and friends who all reside in Northern Ireland. The first
applicant was born in Belfast, Northern Ireland and resided there all
his life. All family members reside in Northern Ireland. He has no
relatives in England. His requests for transfer have been refused by
the Home Office by replies dated 9 August 1985, 19 May 1986, 15
September 1989, 31 October 1989, 29 August 1990 and 29 January 1991.
By reply dated 9 August 1985, the applicant was advised that :
"the Secretary of State has amongst other things to be satisfied
that the prisoner will conform fully to a normal regime on
transfer and specifically that he has severed all links with any
paramilitary organisation".
By reply dated 31 October 1989, the applicant was informed that
"The Secretary of State is still not satisfied that, if
transferred, you will not disrupt or attempt to disrupt any
prison establishment in Northern Ireland or otherwise pose an
unacceptable risk to security".
In a reply dated 11 October 1991, the Home Office stated that:
"the consideration of reports on your behaviour here was only one
factor... having regard to the possibility of you disrupting or
attempting to disrupt any prison establishment in Northern
Ireland or otherwise posing an unacceptable risk to security.
In view of your continued concern about the decision made on your
earlier request, further consideration has been given to the
possibility of your being transferred to Northern Ireland either
permanently or temporarily. After consultation with the
Northern Ireland authorities it has been determined that if
transferred permanently you would expect to receive a substantial
reduction in your time to serve. In view of the seriousness of
your offence it has therefore been decided that it would be
inappropriate for you to be permanently transferred. In the view
of the Northern Ireland authorities, there also remain objections
to such a transfer on the basis of security concerns and your
presenting a continuing risk of disruption to their
establishments. I also have to advise you that for security
reasons, the Home Secretary is not prepared to authorise your
temporary transfer at this time."
The first applicant's father died in 1988. He was unable to see
his son since the time of his arrest due to ill-health and inability
to travel long distances. If the first applicant had been transferred
to a prison in Northern Ireland his father could have visited him
regularly before his death. The first applicant was refused
compassionate parole for his father's funeral.
The first applicant married Martina Anderson in May 1989. She
is also serving a life sentence of imprisonment in England and has also
requested a transfer to a prison in Northern Ireland where the distance
between prisons would not be as great and they could possibly be held
at the same prison. Her request has been refused by the Home Office.
The second applicant suffers from ischaemic heart disease,
angina, hypertension, chronic bronchitis and asthma. She is short of
breath on exertion and therefore finds any form of travel difficult,
and any attempt to visit her son in prison is very trying for her. Any
form of travel, particularly the long and arduous journey from Northern
Ireland imposes a huge stress and burden upon her, and indeed, upon the
whole family. Due to her medical condition she is presently unable to
travel during winter and will therefore be unable to visit her son
until Easter next. She is entitled to thirteen paid visits to England
because she qualifies for financial state assistance. She receives
some assistance from the Department of Health and Social Services of
Northern Ireland. She can only avail herself of approximately 3-4
visits per year, however, due to her ill health.
The third applicant is married with a young family. She is not
entitled to state assistance and therefore must pay her own travel,
accommodation, and subsistence expenses. When she travels she must seek
accommodation. She lives in Belfast and has lived in Belfast all her
life. She is included in the list of approved visitors though has not
visited since 1989.
Another reason why some members of the first applicant's family
are unable to visit at all including his brothers and sisters is that
some live in mixed Protestant/Catholic areas and they could not risk
the Royal Ulster Constabulary calling at their home to approve the
visit. The procedure is that each visitor must be approved by the
British Home Office and each visitor must complete an application form
which is submitted to the British Home Office with personal
photographs. The British Home Office then contact the Royal Ulster
Constabulary to call to the proposed visitor's home to make enquiries
as to why he or she wishes to visit the person in prison. The second
applicant submits that invariably the Royal Ulster Constabulary treat
proposed visitors with hostility.
The second applicant receives a phone call from her son
approximately once every six weeks and the first applicant can
telephone his wife approximately once a month. The first applicant and
his wife see each other once every five to six months and since they
married in May 1989 they have had seven visits together.
Since being sentenced in March 1985 the first applicant has been
held in five different prisons ranging in distance from the Isle of
Wight on the south coast of England to prisons in the far north of
England.
The first applicant also submits that the conditions of detention
for Irish Republican prisoners in England are considerably worse than
those for their counterparts in Northern Ireland. Unlike the position
in Northern Ireland, the applicant and other Irish Republican prisoners
are completely segregated from each other unless one or two prisoners
are in the same establishment due to the fact that there are no other
prisons available. Irish Republican prisoners are generally held in
solitary confinement, in isolation, and dispersed throughout as many
available prison establishments as are in existence throughout England.
There is a policy of regular transfer from prison to prison, resulting
in the prisoners being unable to settle into familiar surroundings,
which has an adverse effect on health for prisoners serving lengthy
prison sentences.
RELEVANT DOMESTIC LAW AND PRACTICE
a) Visit entitlement
The Prison Rules 1964 (S.I. 1964/388), made by statutory
instrument under the Prison Act 1952, Sections 47 and 52, contain,
inter alia, the following provisions:
"31.(1) Special attention shall be paid to the maintenance of
such relations between a prisoner and his family as are desirable
in the best interests of both.
(2) A prisoner shall be encouraged and assisted to establish and
maintain such relations with persons and agencies outside prison
as may, in the opinion of the governor, best promote the
interests of his family and his own social rehabilitation."
"34(1) An unconvicted prisoner may ... receive as many visits as
he wishes within such limits and subject to such conditions as
the Secretary of State may direct, either generally or in a
particular case.
(2) A convicted prisoner shall be entitled -
...(b) To receive a visit once in four weeks ..."
From April 1992, the normal visit entitlement was increased to
two visits in every period of four weeks.
Accumulated Visits:
"Subject to the provisions of Orders 5A 12-18 ... convicted
inmates may be allowed to accumulate visits up to a maximum
of 12 and apply ... to be temporarily transferred to any
local prison to take their visits. Category A inmates ...
must petition for temporary transfer ... An inmate must
have accumulated at least 3 visits before he can be
transferred to take accumulated visits."
b) Temporary transfer
The Criminal Justice Act 1961 and Standing Order 5A provide that
a prisoner may apply for temporary transfer to another prison to
receive visits. These may be from a close relative or relatives who
may also be in custody. "Close relative" is defined so as to include
"brother". The material provision is Section 27(1) of the Criminal
Justice Act 1961 which provides that:
"The responsible minister may, on the application of a
person serving a sentence of imprisonment or detention in
any part of the United Kingdom, make an order for his
temporary transfer to another part of the United Kingdom...
and for his removal to an appropriate institution there."
c) Permanent transfer
Section 26 of the Criminal Justice Act 1961 provides inter alia:
"(1) The responsible Minister may, on the application of
a person serving a sentence of imprisonment or detention in
any part of the United Kingdom, make an order for his
transfer to another part of the United Kingdom, there to
serve the remainder of his sentence, and for his removal to
an appropriate institution [there]...
(4) Subject to the following provisions of this section, a
person transferred under this section to any part of the United
Kingdom there to serve his sentence or the remainder of his
sentence shall be treated for purposes of detention, release,
supervision, recall and otherwise as if that sentence (and any
other sentence to which he may be subject) had been an equivalent
sentence passed by a court in the place to which he is
transferred."
In a written decision relating to a request by a prisoner for
permanent transfer from the United Kingdom to Northern Ireland the
Secretary of State indicated the criteria he would apply in exercising
his discretion to transfer prisoners. That decision reads, in part,
as follows:
"Revised criteria governing the transfer of prisoners to
another jurisdiction in the United Kingdom were announced,
in reply to a Parliamentary question on 23 June 1989.
These provide that an inmate's request to be transferred
will, normally, be granted provided that all the following
conditions are met:
(i) the inmate would have at least six months left to
serve in the receiving jurisdiction before his or her date
of release;
(ii) the inmate was ordinarily resident in the receiving
jurisdiction prior to the current sentence or his or her
close family currently reside there and there are
reasonable grounds for believing that it is the inmate's
firm intention to take up residence there on release; and
(iii) both departments concerned are reasonably satisfied
that the inmate will not, if transferred, disrupt or
attempt to disrupt any prison establishment or otherwise
pose an unacceptable risk to security.
It was also stated, however, that even if these criteria
were met, transfer may be refused if it is considered that
the inmate's crimes were so serious as to render him or her
undeserving of any degree of public sympathy or to make it
inappropriate that the inmate should benefit from a
substantial reduction in the time left to serve if that
would be a consequence of transfer.
Similarly, transfers may be refused if there are reasonable
grounds for believing that the inmate's primary intention
in making the application is to secure a reduction in the
time left to serve. On the other hand, an application that
does not meet these conditions may, nevertheless, be
granted where there are strong compassionate or other
compelling grounds for transfer."
d) Differences in release policies and procedures
The law and practice relating to the proportion of a sentence
which must be served before release differs between the United Kingdom
jurisdictions. Prisoners serving determinate sentences in England and
Wales are entitled to one-third remission of their sentence. Prisoners
in Northern Ireland are generally entitled to remission of one half of
their sentence. There are also differences in the administration of
life sentences so that those serving sentences for comparable offences
are generally released earlier in Northern Ireland than they would be
if they were sentenced in England and Wales.
e) Categorisation of prisoners
Category A prisoners are defined as those whose escape would be
highly dangerous to the public, or to the police, or to the security
of the state, no matter how unlikely that escape might be. Category
A prisoners are further classified as presenting either a standard,
high, or an exceptional escape risk. Prisoners assessed as Category
A (exceptional risk) are located in Special Security Units within
prisons. In deciding on a prisoner's categorisation, account is taken
of the nature and circumstances of the offence, details of any previous
convictions, where appropriate, the prisoner's mental state, and
reports from police, prison and other sources. The need to continue
to hold a confirmed Category A inmate in the highest security category
is reviewed at least once every 12 months on the basis of up to date
reports.
Category A prisoners are subject to certain restrictions. Their
movements within the prison are escorted and are closely monitored and
recorded. Their visitors have to be approved and their photographs
verified by the police under special arrangements known as the Approved
Visitors Scheme. They are subject to frequent cell changes. They are
not permitted to work in the prison kitchen. In addition, prisoners
in Special Security Units do not have access to prison workshops.
COMPLAINTS
The applicants complain that the refusal of a transfer, temporary
or permanent, is in violation of their right to respect for their
private and family life as guaranteed by Article 8 of the Convention.
They submit that alternative prison accommodation is available in
Northern Ireland and that there is no valid reason for refusing the
transfer. The denial of transfer is deliberately and unnecessarily
punitive.
The applicants also complain that they are discriminated against
on the grounds of political or other opinion, national origin and
association with a national minority, contrary to Article 14 of the
Convention. In particular, they submit that Irish Republican prisoners
are discriminated against as a class in that they are treated less
favourably than other prisoners in relation to questions of transfer.
The applicants further submit that they have no effective remedy
as required by Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 October 1991 and registered
on 15 November 1991.
On 2 April 1992, the Commission (First Chamber) decided to
communicate the application to the respondent Government and to ask for
written observations on the admissibility and merits of the
application.
The Government's observations were submitted on 9 July 1992 and
the applicant's observations in reply were submitted on 7 October
1992.
THE LAW
1. The Government submit that the applicants have failed to exhaust
domestic remedies since they have not instituted proceedings for
judicial review of the refusal to transfer. The applicants have
replied that such proceedings would be doomed to failure in light of
domestic case-law "In the matter of an application for judicial review
by Paul Peter Baker" of the High Court in Northern Ireland and the
Divisional Court in McAvoy ([1984] 3A11E.R.417).
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute a remedy, do not in reality offer any chance of redressing
the alleged breach (cf. Application No. 9248/81, Dec. 10.10.83, D.R.
34, p. 78).
It is furthermore established that the burden of proving the
existence of the available and sufficient domestic remedies lies upon
the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of
27 February 1980, Series A no. 35, p. 15, para. 26, Application No.
9013/80, Dec. 11.12.82, D.R. 30, p. 96, p. 102).
The Commission notes from the cases cited by the applicant that
it appears that domestic courts will not examine the Secretary of
State's reasons for refusing an application if that refusal is based
on considerations of national security.
In these circumstances, the Commission finds that there is no
indication that the applicant would have had any possibility of success
fully challenging the refusal of the Secretary of State by way of
judicial review. The Commission is accordingly unable to accept that
the application should be declared inadmissible for non-exhaustion of
domestic remedies.
2. The applicants complain that the refusal to transfer the first
applicant temporarily or permanently to a prison in Northern Ireland
to facilitate visits from his family is a violation of Article 8
(Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Government have submitted that the relationship between the
applicants does not constitute family life within the meaning of
Article 8 (Art. 8) of the Convention. They refer to case-law where
emphasis was placed on the element of financial or other dependency.
The Commission however considers that in the context of prisoners or
other persons who are detained the concept of "family life" must be
given a wider scope. Prisoners generally have limited means of contact
with the outside community and of maintaining relationships with family
members. "Family life" for prisoners is inevitably restricted to
visits, correspondence and possibly other forms of communication such
as telephone calls. Emotional dependency between, for example, parents
and adult children, or siblings is even enhanced in these
circumstances. The Commission recalls in this context that the
European Prison Rules emphasise the need to encourage these links:
"65. Every effort shall be made to ensure that the regimes of
the institutions are designed and managed so as:
(c) to sustain and strengthen those links with relatives and
the outside community that will promote the best interests of
prisoners and their families."
The Commission has also stated that it is of the opinion that
Article 8 (Art. 8) requires the State to assist prisoners as far as
possible to create and sustain ties with people outside prison in order
to facilitate prisoners' social rehabilitation (eg. No. 9054/90, Dec.
8.10.82, D.R. 30 p. 113 and No. 15817/89, Dec. 1.10.90, to be
published).
In light of these factors, the Commission finds that the
applicants' complaints must be held as falling within the scope of
Article 8 para. 1 (Art. 8-1) of the Convention.
The applicants have submitted that the refusal of temporary or
permanent transfer constitutes an interference with their right to
respect for their family life. The Commission considers however that
the applicants are arguing in effect not that the State should refrain
from acting but rather that it should take steps to implement a
particular policy. Although the essential object of Article 8
(Art. 8) is to protect the individual against arbitrary interference
by public authorities, there may in addition be positive obligations
inherent in an effective "respect" for family life (see eg. Eur. Court
H.R., Marckx judgment of 13 June 1979, Series A no. 31 p. 31 para. 31).
In this context, the notion of "respect" is not clear-cut and its
requirements will vary considerably from case to case according to the
practices followed and the situations obtaining in Contracting States.
In determining whether or not such an obligation exists, regard must
be had to the fair balance which has to be struck between the general
interest and the interests of the individual (see eg. Eur. court H.R.
Abdulaziz judgment of 28 May 1985, Series A no. 94 p. para. 67 and the
B. v France judgment of 25 March 1992, Series A no. 232-C para. 44)
The Commission recalls that in the present case the first
applicant, who is from Northern Ireland, is detained in a prison in
England and that he has requested a transfer to facilitate visits from
his family, including the second and third applicants. The Commission
notes that the first applicant is serving a long term of imprisonment
and that the considerable distance involved imposes difficulties in
utilising visit entitlements which cannot be said to be negligible.
The Commission notes however that the first applicant is lawfully
detained for serious offences committed against the background of a
terrorist campaign. The applicant is detained as a Category A
(Exceptional Risk) prisoner. Any transfer would, in the Government's
submission, be highly dangerous, increasing greatly the risk of escape
and his detention in Northern Ireland would also facilitate his contact
with others of his beliefs and increase the potential for covert
subversive activity in the prison there.
The Commission also refers to its constant case-law according to
which a prisoner has no right as such under the Convention to choose
the place of his confinement and that a separation of a detained person
from his family and the hardship resulting from it are the inevitable
consequences of detention (see e.g. No. 5229/71, Dec. 5.10.72,
Collection 42 p. 14 and No. 5712/72, Dec. 15.7.74, Collection 46 p. 112
). The Commission considers that only in exceptional circumstances
will the detention of a prisoner a long way from his home or family
infringe the requirements of Article 8 (Art. 8) of the Convention (see
e.g. No. 5712/72, Dec. 18.7.74 loc. cit. and No. 7819/77, Dec. 6.5.78,
published in part, D.R. 14, p. 186).
The Commission finds that no exceptional circumstances arise in
this case. It notes that the first applicant is detained in England
since he was arrested and tried there in respect of offences committed
as part of an alleged terrorist campaign in England. As a prisoner,
the applicant is subject to the normal regime applicable to his
category as regards correspondence and visits. The second applicant is
entitled to state financial assistance to cover thirteen visits per
year though she is only able to make 3-4 visits due to her health. The
Commission also recalls that the first applicant was able to marry
Martina Anderson while both were detained in prison and that they are
in regular contact by phone and have had seven visits together since
their marriage in May 1989. The third applicant is on the approved list
of visitors though she has not visited since 1989.
Having regard to the above circumstances, the Commission finds
that the failure on the part of the United Kingdom Government to
provide temporary or permanent transfer arrangements to Northern
Ireland discloses no lack of respect for the applicants' family life
within the meaning of Article 8 (Art. 8) of the Convention.
It follows that the complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants also complain that they are discriminated against
contrary to Article 14 in conjunction with Article 8 (Art. 14+8) of the
Convention since Irish Republican prisoners in the United Kingdom are
treated less favourably than other prisoners as regards transfer.
Article 14 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission notes that the applicants do not contend that
there is a blanket prohibition on transfer of Irish Republican
prisoners to Northern Ireland. In the present case, the first
applicant was refused transfer at least partly on security grounds. The
Commission considers that different considerations concerning security
apply to different prisoners. It recalls that the first applicant is
a Category A (exceptional risk) prisoner convicted in relation to
terrorist offences. In these circumstances, his position cannot be
considered as analogous to that of other prisoners for the purposes of
Article 14 (Art. 14) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicants also complains under Article 13 (Art. 13) of the
Convention that they have no effective remedy in respect of their
complaints.
Article 13 (Art. 13), however, does not require a remedy under
domestic law in respect of any alleged violation of the Convention.
It only applies if the individual can be said to have an "arguable
claim" of a violation of the Convention (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
The Commission recalls that it has found the applicants'
complaints under Article 8 (Art. 8) of the Convention manifestly ill-
founded. In these circumstances, the Commission also finds that the
applicants cannot be said to have an "arguable claim" of a violation
of the Convention.
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the President of the Commission
Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy